IN THE CASE OF:  	  

		BOARD DATE:  7 October 2014	  

		DOCKET NUMBER:  AR20140003516 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests an upgrade of his discharge under other than honorable conditions to general under honorable conditions.

2.  The applicant states:

* he was very young and inexperienced 
* he was not drafted but he refused orders to serve in Vietnam due to his personal beliefs regarding war
* he was remanded in the stockade for a period before being released to his unit as a cook
* his discharge should be upgraded because he did not commit a punishable crime under civilian standards
* he is not seeking receipt of benefits from the Veterans Health Administration or Veterans Benefits Administration

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant's failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant was born in March 1951 and he enlisted in the Regular Army at 18 years of age on 24 June 1969.

3.  Item 44 (Time Lost Under Section 972, Title 10, U.S. Code, and Subsequent to Normal Date of Expiration of Term of Service) of his DA Form 20 (Enlisted Qualification Record) shows lost time as follows:

* 18 October 1969
* 31 October 1969 to 3 November 1969
* 15 November 1969 to 18 November 1969
* 4 January 1970 to 23 January 1970
* 28 February 1970 to 27 March 1970
* 2 May 1970 to 3 May 1970
* 9 May 1970 to 2 August 1970

4.  His DA Form 20B (Record of Court Martial-Conviction Insert Sheet to DA Form 20) shows he was tried and found guilty by a summary court-martial of being absent without leave (AWOL) from on or about 4 January 1970 until on or about 21 January 1970. 

5.  On 20 April 1970, the applicant underwent a psychiatric evaluation.  He was psychiatrically cleared for any administrative action deemed appropriate by his command.  He was diagnosed with:

* immature personality – chronic, severe, manifested by low frustration tolerance
* extremely unreliable judgment
* frequent troubles with the law
* indiscriminate abuse of drugs
* stress – minimal, routine duty

6.  A DA Form 458 (Charge Sheet), dated 6 August 1970, shows charges were preferred against the applicant for the following:

* being AWOL from on or about 28 February 1970 until on or about 26 March 1970
* being AWOL from on or about 2 May 1970 until on or about 4 May 1970
* being AWOL from on or about 9 May 1970 until on or about 3 August 1970
* failing to obey an order

7.  On 19 August 1970, the applicant consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and the procedures and rights available to him.  Following consultation with legal counsel, he provided statements in his own behalf and requested a general discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  In his request for discharge, he acknowledged:

* he was guilty of the charge against him or of a lesser-included offense
* he understood that if his request were approved he could be discharged under other than honorable conditions 
* he understood that he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he understood that he could expect to encounter substantial prejudice in civilian life

8.  On 19 August 1970, the applicant also provided the following additional statements, in part:

* he received about 10 Article 15's (not available for review)
* he only had 3 months of good time and about 11 months of bad time
* he would continue to be AWOL if he were returned to duty

9.  On 15 September 1970, the separation authority approved his request for discharge, directed the issuance of an Undesirable Discharge Certificate, and directed his reduction to private/E-1.

10.  On 18 September 1970, the applicant was discharged as directed.  His DD Form 214 shows he was credited with 8 months and 3 days creditable active service.  He had 145 days of lost time.

11.  On 10 March 1988, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Paragraph 1-7, in effect at the time, stated the type of discharge and character of service would be determined solely by the military record during the current enlistment or period of service, plus any extensions thereof from which the Soldier was being separated.

	b.  Paragraph 3-7b states a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge under other than honorable conditions to general under honorable conditions was carefully considered.

2.  The records show the applicant was 18 years of age at the time of his indiscipline.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The records show he was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge processing.

4.  He elected to be AWOL and when court-martial charges were preferred against him, he voluntarily chose to be discharged instead of facing the charges.  His records show he was well advised and fully aware of the consequences of his decisions.

5.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and there is no documentary evidence of mitigating circumstances that would warrant upgrading his discharge.  Therefore, he is not entitled to a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _______ _   _X_____   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20140003516



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140003516



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1